Dressing down discriminatory dress codes

Sexualized and gender-based dress codes off the menu at Ontario restaurants
By Nadia Zaman
|Canadian HR Reporter|Last Updated: 05/15/2017

This year, on International Women’s Day, the Ontario Human Rights Commission (OHRC) released a new report, Not on the Menu: Inquiry Report on Sexual and Gender-based Dress Codes in Ontario’s Restaurants. It outlines findings from an inquiry into dress codes at various Ontario restaurants and commitments made by a number of restaurant chains to put an end to discriminatory dress codes for restaurant staff — particularly female and transgender workers — and create more inclusive workplaces.

The result: Sexual harassment and gender-based dress codes are off the menu and will no longer be tolerated. Thus, employers with discriminatory dress codes expose themselves to liability.

The impetus for this report arose because some restaurants have dress codes that require female servers to wear short skirts, tight dresses, high heels or low-cut tops; the same does not apply to male servers.

Due to the systemic nature of the problem and the impact based on protected grounds under the Ontario Human Rights Code, the OHRC decided to have a “call to action” on gender-based dress codes.

Hopefully, this report will bring about change that is long overdue.

Impact of dress codes

Most workers in restaurants and bars are women, many of whom are young and precariously employed. As a result, they are prone to being more vulnerable and are less likely to be aware of or be able to assert their rights.

Sexual dress codes reinforce stereotypical and sexist notions about females, and can lead to discrimination based on various code-protected grounds. In fact, sexual harassment is quite common at some restaurants and bars, and may be perpetuated by the normalization of sexual dress codes.

Consequently, many workers are afraid to object to dress codes or complain about sexual harassment and other discrimination. Not surprisingly, the report revealed some workers fear reprisal for raising such concerns, such as losing their job or not being hired. Even if workers object or complain, restaurants are often unresponsive and dismissive, effectively condoning a discriminatory workplace.

Accordingly, focusing on gender-based dress codes is a critical first step to eradicating sexual harassment and other discrimination in the workplace.

Management rights

The report maintains that organizations can have uniform policies for staff that are in line with their corporate brand, ensure a professional image, address health and safety-related concerns, and meet their organizational goals. These are recognized as “legitimate business interests.” However, the policies and requirements must comply with the code.

In that regard, employers are obligated to take reasonable steps to prevent and address harassment and discrimination in the workplace, such as not requiring sexual or gender-stereotypical clothing.

Employers that fail to prevent sexual harassment and discrimination, appropriately respond to and handle staff complaints, or accommodate employees up to the point of undue hardship, are viewed as contributing to a discriminatory work environment.

For example, in the 2013 McKenna v Local Heroes Stittsville, the sports bar cut the server’s shifts after she raised concerns about wearing a new form-fitting uniform due to her visible pregnancy. Previously, she had been allowed to wear loose T-shirts.

The Human Rights Tribunal of Ontario (HRTO) found that management, in their effort to re-brand by emphasizing the sexual attractiveness of their staff (almost all young women), saw the server’s visible pregnancy as inconsistent with their rebranding efforts. The HRTO found this to be discriminatory, and ordered the respondents to pay the woman $17,000 for injuring her dignity and almost $3,000 in lost wages.

Back in September 2016, Bill 132, which amends Ontario’s Occupational Health and Safety Act (OHSA), came into force in Ontario. It includes sexual harassment in the definition of workplace harassment and creates new obligations regarding policies to address sexual harassment in the workplace. This legislation outlines employers’ obligations to have clear policies, how and to whom an individual is to report an incident of sexual harassment, and how allegations of sexual harassment will be investigated and reported. In that regard, the Ontario Ministry of Labour has issued a Code of Practice to help employers comply with the
OHSA’s harassment provisions.

Therefore, employers must ensure workplaces are free of discrimination and harassment; otherwise, they expose themselves to liability for violating employees’ human rights, bad publicity, the risk they will lose employees without the ability to replace them with quality individuals, as well as decreased employee productivity, low morale, and increased absenteeism.

Best practices

Employers must recognize that different employees may have different code-related needs and are affected in different ways by uniform requirements. Accordingly, it is crucial to have clear, comprehensive and inclusive policies; processes to address complaints about dress codes, sexual harassment, and other discrimination; and accommodation processes.

The OHRC has developed tools that employers can use to comply with its policy position and remove discriminatory
barriers, such as those created by sexual dress codes. For instance, the OHRC has prepared a checklist for employers to ensure their dress codes comply with the code.

Employers would be well-
advised to do the following:

• Write and put into practice policies and processes.

• Retain records of harassment and discrimination complaints, accommodation requests, and all considerations and assessments.

• Accommodate up to the point of undue hardship.

• Consider options and be flexible.

• Investigate workplace harassment as well as discrimination complaints.

• Communicate findings of harassment and discrimination complaints, including a general summary and intended future preventative steps. Where necessary, provide additional details (such as changing shifts).

• Educate both yourself and your employees.

By releasing this report, the OHRC expressed the growing intolerance for sexual harassment and other discrimination; contributed to the ongoing (and much needed) dialogue about the barriers women face in the workplace; acknowledged the vulnerability of many employees who do not object to sexual dress codes or complain about harassment due to fear of reprisal; recognized that proactive steps must be taken by employers to remove discriminatory barriers; and provided practice tools for employers to help create workplaces that are barrier-free and to ensure compliance with the code.

Many restaurants have already amended or drafted policies and processes to comply with the code. The challenge will be the obvious next step: Putting the policies and processes into practice.

Nadia Zaman is an associate at Rudner MacDonald, an employment and labour law firm in Toronto. She can be reached at nzaman@rudnermacdonald.com.

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